GGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 GGV MOOT COURT EXERCISE AND EVALUATION OF PERFORMANCE (2020-2021) MOOT COURT EXERCISE FOR FINAL YEAR PRACTI }-2021 Moot court is one of the important aspects of curriculum of ve of GGU. The exercise of participating in moot courts makes one aware of the prov /ing a legal case. Moot Court enables students to learn research skills, oratory s| in eflective thinking, critical and analytical reasoning skills. For the purpose Sento ‘ical on Moot Court Exercise, you will be put into a Moot Problem. Your response ay necessary inputs for evaluation. To {facilities this process, you will be grouped into 1m Of 3 members. Teams will be divided into two groups: (1) Counsel for the Plaintiff an insel for the Defendant. In accordance with the law and practice, each team oups which it represents (either Plaintiff or Defendant) will submit a Memorial, setting forth its legal arguments supplemented with, among other things, relevant legal provisions), case laws and necessary inputs, all in the context of present case, And then on oe date, which may or may not vary with 15.07.2021, the team will argue their points-omthe issues arisen from present case and elucidate their argument with appropriate sions, case laws and necessary inputs. Further, if clarification/explar in Moot Problem is sought from among participants, the seekers raised their qui ee time seven day after the release of Moot Proposition. Thereafter by 3 to 4 days tf ment will release addendum for clarification and explanation. For this purpose, irtment will arrange the mechanism for receiving the queries from among you, whic tified very soon in the google classroom. MOOT PROBLEM OBJECTIVE AND DICLAIMER This Moot Problem has been formulated solely for the purpose enabling the student to familiarize themselves with the law and practice on the Trademark and for furthering the academic exercise only. The facts stated in this moot problem are fictitious. The facts, names, locations and dates bear no resemblance to any person, event or happening whether dead or alive. Any resemblance, if any found is purely coincidental. This Moot Problem does not intend to hurt the feelings of any section of society or to offend any person.GGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 INTRODUCTION The growth of trade and cross-border business activities marked a transition to expanding intellectual property rights. After the Economic Globalization and functioning of WTO, almost all the countries are attracting TMCs for investment in their country. As investment in portfolio. form is not so profitable in comparison to that of FDI, these countries have started providing to these Business Giants an environment for operating their business in their territory and drawing profit. As a result, the world saw how the capital which were concentrated in a few developed countries started travelling to developing and least developed countries, And then the role of technologies, which has increased the pace of such capital shifts. As motive of more profit decides the route of capital shift, FDI are taking place in such territories and in eS siness activities in where there is scope of earning comparative profit and security of stment. Our experience for two decades identified the said business activities a sin where involved the protection of technology transfer. And takeover of the (bi fess by TMCs is only the aspects of Technology transfer involved in the operation o his carefully done while thoroughly considering on the object of taking over, j., Trademark, Goodwill, Confidential Information, Know-How, Trade Secrets, among other things. GS The present case is in context of infringement of tr ror irdhan Republic, a developing country in South Asia, The Capital of Vardhan Republic is"Sadabganj. The political system of Vardhan Republic is exactly similar to that of ny India, it has adopted cooperative federalism. It has its constitution exactly simila of India, Like India, Vardhan Republic is also the members of WTO. The procedur: Vardhan Republic are identical to that of India. The law on the Intellectual Pi mye is also modelled exactly on the line that of India. In other word, Constitution ot {epublic as well as all legislation of this Republic is pari materia to that of India. Beini mmon law country, the doctrine of stare decisis in Vardhan Republics in equal f that of India. BACKGROUND FACTS Q The Plaintiff, Thu eae Caray is the largest brand of soft drinks operating in 179 countries. A simil oS 5 related to mineral water and soft drink is done also by defendant, Vardhan Farmffes fernational Pvt. Ltd. Its soft drink product bearing trademark ‘AQUATHIRST’ e lar brand product in the county. On May 1° 2015, Mr. A with the capacity of an pany, sold the trademark, formulation rights, know-how, intellectual property Iwill etc. of its soft drink product AQUATHIRST to plaintiff for India only. Several assignment/agreements were signed between both the parties, such as, deed of assignment, goodwill assignment, know-how, and confidentiality and non-use agreement, non- compete agreement, general assignment, etc. to give effect to the sale for a considerable money value. By Virtue of these agreements, the plaintiff had got exclusive right to sell or authorize other to sell the soft drink product AQUATHIRST within the territory of Vardhan Republic. The defendant retained the trademark right of AQUATHIRST in respect of other countries where it had been registered. 4 maGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 In 2021, in the month of January, the plaintiff filed an application for registration of the trademark AQUATHIRST in foreign country, Rethonia. After information of this fact, the defendant sent the plaintiff a legal notice, on April 17" of 2021, repudiating the License Agreement thereby ceasing the plaintiff from manufacturing AQUATHIRST and using its trademark etc. directly or indirectly by itself or through its affiliates. The notice claimed that the plaintiff had breached the said agreement by attempting AQUATHIRST in Rethonia whereas the agreements/assignments between the parties allowed the plaintiff to use AQUATHIRST in Vardhan Republic alone. The notice mentioned that the defendant “may proceed to use the same after complying with legal formalities and procedures as per the law of the land”. INSTITUTION OF SUIT Thundertaste Company —Versus__—_Vardhan Farmfresh Intern; ay [e.s. (0.5): 103/2021] < oO The plaintiff instituted the present suit in the High Court of Sadabgal nj in the month ei of on May 2™, 2021 for restraining the defendant from the action3ithi fed in the legal notice dated April 17", 2021 got issued by the defendant to the plaintif{,\The plaintiff referred in its plaint to a cutting of newspaper advertisement publis! jab Ganj Edition of Vardhan Republic and stated that the intention of the using the ti rk AQUATHIRST by defendant is clearly reflected from this advertisement. According tothe plaintiff the ground on which the defendant is seeking to repudiate the roa yeatening to start using trademark in Vardhan Republic with respect to same goods. lacious. There is no documents between the parties which shows that the defendant h: to restrain the plaintiff from registering the trademark outside Vardhan rh an has not got it registered in its favour. Another matter which the plaintit in its plaint is that the defendant is unauthorizedly permitted the manufacture apes bases of AQUATHIRST in Vardhan Republic by the M/s. Anzel Deep Agro Internatio is located at L/24, Mount Valley (Post), Sharadpur (District), Sinhala (State), Pin-576: port, the plaintiff stated that as defendant is manager of the said company whi iw is his wife, it may be assumed that the business of the company is being run by theldefendant in collusion with his wife. plaintiff sought permanent injunction and damages for infringement of trademar sing off as it claims that the defendant has completely ignored the irrevocable sfer of the trademarks, formulations rights, intellectual property rights and in favour of plaintiff. The defendant ignored also the duly executed agreements in relation to product AQUATHIRST in context of confidentiality, non-use, and non-compete. With regard to the invoking the jurisdiction of this court, the plaintiff stated that: {a) It has been selling its product AQUATHIRST all over the Country for last 6 years which include also the territorial area covered under the jurisdiction of this court; (b) the legal notice issued to the plaintiff itself speaks of the defendant's intention to use the mark all over Vardhan RepubliGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 {c) The defendant has a factory in Sadab Ganj from where defendant is operating a sales and distribution as similar to that in Shardpur. (d) Mr. A, with whom all the agreements related to transfer of product AQUATHIRST were signed, and who is the manager in M/s. Anzel Deep Agro International, resides in the jurisdiction of this Court. The plaintiff through an interlocutory application filed along with its plaint sought ex parte order under Order 39 Rules 1 & 2. The plaintiff claimed that it will suffer irreparable loss and injury: (1) if the defendant is not restraint from carrying out threatened actions and from commencing the using of trademark AQUATHIRST in Vardhan Republicswhich the defendants has not done for the last 12 years. (2) Ifthe defendant is not restraint from permitting the manufactu ie bases of product AQUATHIRST by third party. : N\ After hearing the learned council of plaintiff, the court " 2021, passed an order restraining the defendant, its officers, employees, agen F concern(s) from using the mark ‘AQUATHIRST’ or any other deceptive similar trademark in relation to mineral, aerated EX PARTE ORDER BY THE COURT water, non-alcoholic drinks and syrup and other fation of making such beverages. The defendant and its officers etc. were also restrained from using and/disclosing to any person the know-how, formulations, and other intellect erty used in the preparation of beverages and beverages sold under the trademark ‘A¢ T. By the same ex parte order, the oe a local commissioner. The local commissioner was directed to determine as to er the beverages in the name of AQUATHIRST are being manufactured at the factory of M/s. Anzel Deep Agro International. The local commissioner is also directed to sign all ofthe account and other statutory records being maintained at the said factory relating mop ds manufactured and sold under the impugned trademark and to make inventor me. The court appointed the local commissioner on the request made through appli by Plaintiff wherein it was pleaded by the learned council of the plaintiff tha "tment of the local commissioner is necessary to determine the breach/in it of the trademark of the plaintiff by the defendant. COMMISSION Accordingly, the commissioner visited the said factory, made inspection therein, collected the evidence, made inventories and filed its report on 19" of May 2021. The report noted therein that empty Cartons and paper trays with the label ‘AQUATHIRST’ and empty and filled plastic bottles containing mineral water with the label ‘AQUATHIRST’ and with the said label embossed on the plastic surface were found. Report also noted production activities of concentrate syrup. It read that the beverage bases for producing soft drink product having identical taste to soft drink product AQUATHIRST is being produced in this factory. The factory is producing concentrated syrup which are then filled in gallons of 10 & 20 liters under the label ACUATHIRST. Various documents attached with the report disclose that M/s, Anzel Deep Agro International pa Pas \vGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 has been receiving the order from, and exporting the ‘ACUATHIRST’ product (Concentrate syrup) to, many overseas companies, all in the knowledge of Mr. A, the manager of the Anzel Deep Agro International Pvt. Interlocutory Applications by Defendant Having received the notice from the court for submission of reply, the defendant appeared before the court. The Defendant did not file written statement but have filed two applications on May 27" 2021: one for vacating the ex parte injunction issued against defendant and; other for rejection of plaint under the provisions of Code of Civil Procedure. With regard to second application asking for rejection of plaint, the defendant submits as under. i. That this court has not territorial jurisdiction to entertain the present sui See stated that it has no business within this court's jurisdiction wee tory where mineral water under the label of AQUATHRIST is bottled and oy fered office of the defendant is in Sharadpur District of Sinhala State in Ce Even, the registered office of registered user of the plaintiff is located oul ee jurisdiction of this court. Further, all correspondence between thé parties has been to and from defendant’s office, located at L-Ext./33A, Mo (Post), Sharadpur (District), Sinhala (State), Pin-57645. Also, the agreement éxécitted between the parties were so executed in Foreign country, Mukhas Aress. So\far as the notice is concerned, the said legal notice gives the details of aot ice only and hence the plaintiff is attempting to mislead this court. Rel the Article published in Times of Vardhan Republic, the defendant stated, th article originated in Shardapur and if it is published in Sadab Ganj Editi6n, it'is because Sadab Ganj Edition is the Sister Concerns of Times of Vardhan Republic, ipur. The defendant pleaded that as the suit is related to infringement of the SS the issue of the jurisdiction must be decided in the light of legal provisio mark law of this country. ii, That the present, le to be dismissed. This is because of the reasons as follows: a. The agr tween the parties are in the nature of determinable contract and as such \edy of damages is available. Hence, the present sult is barred under the pl ‘Specific Relief Act 1963; N53 laintiff’s entire case is based on the wrong interpretation of the said legal YS ice. The legal notice cannot be construed as threat to use the trademark ‘AQUATHIRST. The expression used in the legal notice—“may proceed to use the same after complying with legal formalities and procedures as per the law of the land” cannot be taken to mean that defendant is threatening the plaintiff. Emphasis must be given on the ‘may’ and ‘complying with legal formalities and procedures’. As such, the plaint is lacking in disclosure of cause of action in that it did not disclose how the defendant intends to use or transfer the trademark AQUATHIRST in relation to soft drink; ypr\ ai OFGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 c. There is no averment made by plaintiff in its pleading in that the defendant has used or is using the trademark AQUATHIRST in relation to soft drink in Vardhan Republic. Nor the plaintiff has made averment(s) in its pleading as to: i, how the defendant has permitted the manufacturing of beverage base related to soft drink product AQUATHIRST by third party for use in Vardhan Republic; and/or li, how/when/where the defendant has disclosed the know how related to soft drink product AQUATHIRST to third party to be used in Vardhan Republic. d. Except the averment that the company belongs to wife of the defendant wherein the defendant is appointed as manager, the plaintiff did not make any av; jow the company M/s. Anzel Deep Agro International is related to defendai director nor a shareholder in this company. The mere fa iS company belongs to his wife does not shift the burden of proof on laintiff to show that defendant has breached the confidentiality aS competence agreement related to soft drink product AQUATHIRST. e. The defendant is only a manager in the said company on 4 fe is neither a rt OF pl f. The company M/s. Anzel Deep Agro rea ly about whom the plaintiff alleged that defendant has permitted manufact bases for the product AQUATHIRST, has not been impleaded as a meen or proper party. The suit is hence bad for mis-joinder and non-joinder essary party. ili, That the question of infringement jemark ‘AQUATHIRST’ does not arise. After the execution of contract betws laintiff and defendant, the defendant has never been involved in use of trademark AQUATHIRST for soft drink in Vardhan Republic. Nor did it ever intended to use in Vardhan Republic. No anywhere in the country the soft drink AQUATHIRS Se cups to consumer is being supplied on the part of defendant. Further» the said agreements allow the plaintiff to manufacture the beverage bases for \ct AQUATHIRST and apply/use the trademark AQUATHIRST only in Vardhar lic. The right to use the same in foreign nation is still hold good with def wever, itis the plaintiff who made unsuccessful attempt to get it registered i em ia. The government of Rethonia denied the registration of AQUATHIRST as it Sep be deceptive similar to trademark ACUATHIRST of which the owner is plaintiff. defendant has its affiliated concern in Rethonia in where soft drink is carbonated in bottling plants and from where it is sold and distributed across that country. So far as the product manufactured in Sharadpur is concerned, it is only the beverage bases of soft drink for the purpose of export to allied business entities in foreign nations, which are then used in preparing the soft drink, but that under the trademark ‘ACUATHIRST’ and not under the trademark ‘AQUATHIRST’. It is evident from the report submitted by Local Commissioner. Though unregistered in this country, but defendant has been using this trademark ‘ACUATHIRST’ since 2001 for the product related to mineral water. Moreover, the design of each trademark is different which can be observed as follows:, |) 5 esys(" IBGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 a Aquathirst acuathirst Through the second application asking for vacation of ex parte interlocutory injunction, the defendants claimed that by the ex parte injunction dated May 5", 2021 the defendant is suffering from monetary loss. Moreover, its brand-value is decreasing day by day. And all these loss would be irreparable loss if the Ex parte injunction order is not vacated. It would,be injustice to the defendant if the interim injunction would not be vacated COUNTER BY PLAINTIFF S The plaintiff in its reply to these two applications reiterated the same « S of the plaints El laintiff has further Jemark AQUATHIRST along with T in country and abroad. rized production of beverage and has denied the contents of the applications filed by defer supplemented his submission by adding that it purchased the its goodwill, therefore it has rights to use the trademark AC And added that plaintiff is entitled to get relief against t salt of identical product AQUATHIRST under the label AGU) ‘THE QUESTIONS FOR DETERMINATION AT PRE-TRIA\ E The issues raised in this case upon which the ate to take decisions at the present stage are, inter alia: Sy 1. Whether the suit is maintainal Wwe Vil Rule 11? 2. Is plaintiff entitled to get a pl nt injunction? 3. Whether impleadment i/s. Anzel Deep Agro International in this case is necessary for disposal of present 4, Whether expo: ‘ods from a country is to be considered as sale within the country? 5. Whether AS of trademark with goodwill gives rights to purchaser to apply the trademarkein all competing product of seller? infringement of trademark or passing off? FURTHER PROCEEDING pending for disposal of the applications filed by defendant. The case has been listed for 15.07.2021 for further proceeding. The court passed an order thereby directed the learned councils to be present for argument. Note: This Moot problem is originated by Dr. Sagar Kumar Jaiswal, Assistant Professor & HOD, Law, GGY, Bilaspur (C.G.). nse sie 3. \e SGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 RULES, GUIDELINES AND INSTRUCTION 1. With Regards to Memorials ee Se tof Facts, Ss ferment of Jurisdiction Each participating team shall prepare memorials in A-4 Size unrolled paper (SINGLE SIDE), for any one sides, either plaintiff or defendant. Memorials shall be submitted in soft copy on or before one week from commencement of Semester Exam. Soft copy of the memorial shall be submitted in the assignment box cite got classroom of your semester. Submissions through any other means or any other platform mace Language of the memorials shall be English > Each memorial shall consist of the following: \ Cover Page Table of Contents &S Index of Authorities S Statement of Jurisdiction SS Summary of Issues raised/q\ ce nted Summary of corm 2 Page) Arguments rool Prayer for Relief Ree ional), Annexure (0} Memorials Rt side should not contain more than 20 pages. ng [not more than 15 pages] Se RL ig shall count toward the page limit: ‘Statement of Issues ¥ Summary of Arguments Y Arguments Advanced Y Prayer Memorial must be typed and must conform with the following standard: Y Font: times new roman rar Nes $\ Y Font size: 12 for text, 14 for headings, 10 for footnotes 'GGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 3. Y Line spacing: 1.5 Page margin: 1 inch from each side Y Color scheme for Cover Page: Blue for Petitioner, Red for Respondent ¥ Citation Style: Bluebook 20th edition = The cover page of the Memorial must give descriptions, from top to bottom, the following details in subsequent order: ¥ Team No. (Right alinement) GGU Moot Court Exercise, 2021 (Centre alinement) ¥ Inthe High Court of Sadabganj at Sadabganj (Centre alinement) S v > ) ox =a Name of Case (Justified alignment) ie., ‘THUNDERTASTECOMPANY. VARDHAN FARMFRESHINTERNATIONAL.. soe DEFENDANT Y Memorial on behalf of Plaintiff/Defendant ZS side you belong to) (Centre alignment) > Y The details of the all member of “ Name, Roll No., Class BA.LLB/ B.Com.LLB,) (Justified alignment) in the mann ABC NS MNO POR BOOxxxx 9 1600xxxx SOOxxxx: BALLS, BALLLB. BALLLB. With Regard to Met a Ss. ‘One day bef fe of oral argument, that will be notified in advance, Memorial exchange will bedone through email. To facilitate this process, each team, through resear he draw of lots, will disclose their email id on the on the google form. The 008! jor this purpose will be created and will be released soon after the submission als by team. The participating team will not exchange the memorial between them. This will be done by the department. With Regard to Oral Argument = The oral argument round will be conducted virtually by way of video conferencing through a video conferencing platform such as Google Meet/WebEx/ Zoom. The platform, time and link will be properly notified in advance. So, prepare yourself in advance the features of these platform by downloading these app and exercising audio and visual meeting among you. aA ‘ as”GGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 + The team will join at the time allotted to them. Not before and Not after. But if at the time of the joining they are not being joined, make patience. It is possible that the previous round is continuing. Further, they shall keep themselves updated with the information posted in google classroom or WhatsApp, before and during their oral round "Each Member of the team will be in proper dress code. The rule of dress code will be strictly followed. It will be considered upon while evaluating your performance. = The moot court exercise shall be between opposite team, the matching of which will be done by draw of lots. = Each team will be given 10 minutes including one minutes for Rebuttal and Surcebuttal, provided that judges at their discretion, may extend oral argument time ximum of 5 minutes per team. = The division of time between key submission and Rebuttal/S pala ne discretion of the team members. * Each speaker must introduce himself or herself to t co only his identification code, (i.e., First Speaker/Second Speaker) and tea jen to him/her. = Each speaker will speak for at least 3 minutes. C > = If any speaker continues to speak after the c jon of the allotted time, the additional time which he or she speaks for will be dedi from the time allotted to his/her co- speaker, as the case may be. Hol speaker shall be allowed to present his arguments beyond the m at * No additional Sennen n sharing will be allowed. Any information which luld be incorporated in the mem has to be provided to nen = The participants Aes good Internet connection. In case of poor connection, the court will wait for SF jum 5 minutes, afterward which the round will be concluded ex-parte and ig shall be done as if the defaulter team had been presenting and arguing. = iat -duled to take part in a round does not appear for 5 minutes after the scl farts of the round, the round shall be concluded ex-parte and the scoring shall Sy if the defaulter team had been presenting and arguing. icipants shall keep their microphone on mute at all times, except when addressing arguments. A Speaker will unmute his or her microphone only after being invited to do so by the court, = The researcher, though his/her presence is mandatory, will not allowed to argue. But he/she can assist his/her team by sending his team a hand written notes through WhatsApp. For this purpose, a WhatsApp group will be created by the department, and all member participating in this moot court exercise will join this WhatsApp group. Soon the link of the WhatsApp group will be published in google classroom. mA 3 Ww" alGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 4. 5. The language of the Court shall be English With Regard to Researcher Test a a 3. oe 6. The Researchers’ test will be conducted on 10 days after the release of Moot Problem. The duration of the test will range from 30 to 45 minutes depends upon the instruction given in the question paper. ‘The test will be conducted online in the suitable platform The test shall consist of Objective and/or Subjective questions based on the Proposition, Legal principles, and conceptual understanding. A speaker shall not be allowed to appear in the researcher test, unles archer has become unavailable owing to any urgent circumstances. In case, the researcher shall cease to be a participant. The department will Je consent of peer te re elec ceca recrealoniecircs > The language of the test will be English \ With Regard to Rule of Evaluation of Moot Court Ex« = The performance of the individual met the team will be evaluated on the scale of 100 marks, which will afterward portionated to 30 marks. = The distribution of 100 marks will be as follows: 1. 50 Marks for Memorials “ey be common to each member of the team; and 2. 50 Marks for Resé test/Oral Arguments = The marks of atte esearcher will not be shared among other members of team. = Each spe; fer first or second/co-speaker, will be evaluated on individual basis eS rks. And the marks obtained by each speaker will not be shared al her members of team. 3 : 2 Understanding of Lawand Procedure (15 Marks) Application of Ingenuity and Questions (5 Marks) Use of Authority 5 Marks] Organization and Arguments Reference to Memorial Advocacy Skills, Court Craft and Demeanor = Following will be the structure of evaluation of MemorialGGV/DEPARTMENT OF LAW/MOOT PROBLEM FOR FINAL YEAR PRACTICAL/2020-2021 clarity Original Thought (5. Marks) Correct Format and Citation and Organization (5 Marks) Knowledge of Law and Extent of Research (15 Marks) (15 Marks) Knowledge of Facts Grammar and Proper and Articulate Analysi (5 Marks) Evidence of Style (S Marks) = Marks allotted by the judges will be final. 6. With Regard to Dress Code Dress code shall be formal: » Ladies Black and white salwar-kurta, sari or pant/suit or We formals, formal footwear. RK Gentlemen White shirt with black tie, black trousers, met socks and black shoes. Ignore the spelling and grammatical Mistakes. if, any~discrepancy is found in understanding the facts and instruction, convey by making comments in the google classroom in stream tab at the here this moot problem is uploaded. wr vl Ss ea Dr. Sagar Kumar Jaiswal